# FILED May 26, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1998
JAMES H. REGISTER, ) C.C.A. NO. 01C01-9605- CC-00199 ) Appe llant, ) ) ) BEDFORD COUNTY VS. ) ) HON. CHARLES LEE STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conv icti on)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN E. HERBI SON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney Generaland Reporter Nashvill e, TN 37204 KAREN M. YACUZZO Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 MIKE M CCOWN Distri ct Attorney General ROBERT CRIGLER Assistant Distri ct Attorney Bedford County Courthouse Shelbyvil le, TN 37160
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE1 Petitioner was also convicted of aggrava ted kidnappi ng, but t he aggravated ki dnapping conviction was rev ersed b y this Court o n direct ap peal. See State v. James H. Register , C.C.A. No. 01C01-9210-CC-00329, 1993 Tenn. Crim. App. LEXIS 538, Bedford County (Tenn. Crim. App. filed Augus t 12, 1993 , at Nash ville), perm. to app.denied (Tenn. Decem ber 28, 1993). -2- 

## OPINION

The petition er, Jam es H. R egiste r, appe als the Bedfo rd Co unty C ircuit Cou rt’s order denyi ng his peti tion for post-con victi on relief after an evidentiary hearing. Register was co nvicted i n 1992 of one (1) count of aggravated robbery and one (1) count

of aggravated burglary and r eceived an effectiv

e sentence of thirty (30) years. 1 Petiti oner subsequentl y fil ed the present petiti on which all eged
n umerous constit utional violat ions. On appeal, the petit ioner contend s that (1 ) the state wit hheld exculp atory i nformation at a sup press ion he aring p rior to tria l; (2) the state knowingly pr esented fal se testi mony at tri al; and (3)trialcounsel was ineffective for failing to discover such exculpator y information. After a thorough review of th e record before th is Court, w e affirm the judgm ent of the tria l court.

FACTUA L BACKGROUND

A. Trial We will recite the facts as set out by this Court on direct appeal: On Octob er 8, 199 1, at 5:10 a .m., a Bedford County resi dent was acco sted in t he bathroom of her ho me by a man wearing a nylon stocking o ver his head. The intruder , brandishi ng a pocket knife, demanded the v ictim’ s money and was given $8 f rom the victim’s pocket. The intruder then demanded the victi m remove her pantiesand the vic

tim ref used since her t wo year old son was watching. The intruder ordered the victim to make her son l ay down and again demanded she drop h er pan tie s. The vict im explained thatshe w as on her m onthly period and was wearing a pad. Even tually she dropped her panties and the int ruder star

ted undoing his pants, spi ed herpad, turned and walked through the back door of her hom e after cuttin g the telep hone c ord. A wee k later th e victim-3- identif ied a photograph she sel ected as being similar to he r attacker. This was not the d efendant. Late r that day s he sub sequ ently identif ied the defe ndant in a li ne-up. The vi ctim ident ified t he defen dant’s flannel jacket as be ing the jacket wo rn by the intruder. This testimony and other evi dence convinced t he jury t he defendant committed these offenses.
State v. James H. Register , 1993 Tenn. Crim. App. LEXIS 538, at * 1-2. B. Suppressi on Hearing Prior to tri al, the t rial cour t held a hear ing on the petition er’s mo tion to suppress items of evi de nce seized p ursuant to a stop of hi s vehicl e by law enforcementauthorities. Detective Ed Luth er of the R utherford Coun ty Sher iff’s Department testif i ed tha t two inc idents similar to the p resen t case occu rred in Rutherford County in t he fall of 1991. The law enf orcement authorities had a descripti on of the s uspe ct, and a Cam aro au tomo bile wa s see n in the vicinity of the cri me in both cases . Detective Luther s poke with Be dford County authorities who advised hi m about the October 8 incide nt. Th e Bed ford C ounty Sher iff’s Department further advise d that R egiste r drove a Cam aro wh ic h matched the descripti on and he worked in Ruther ford County. Luther als o had informati on that Registe r was drivin g on a su spend ed driver’s lice nse. Lutherthen took a wi tness to t he parking l ot of Register’s place of emplo ymen t, and the wit ness identi fied the Camaro as t he vehi cle seen at the
scene of one of the R utherford Co unty o ffenses . Luther and oth er officers watched the vehicl e until Register got into the vehicle and drove from t he parking lot. Wh en Luth er noticed that Reg ister match ed the d escription of the sus pect, the officers stopped the pet itioner’s vehic le. Register was fri sked, and a pocket knife was found in hi s pocket. The of fi cers obtai ned consent to sear ch the vehicle and s eized vario us ite ms of evidence, includi ng gloves, s cissors, a box-4-

cutter, boots and a jacket. A pair of wom en’s stockings were also taken f rom the petitioner’s car. The officers su bsequ ently took th e petitione r to the She riff’s Depa rtment, where the petitioner w aived his rig hts and g ave a s tatem ent to th e office rs. In his statem ent, the petit ioner deniedculpabil ity for the offenses, but admit ted to bei ng in the vicinity of on e of the offe nses a round th e appro ximate ti me that the offense occurred. The officer s thereupon arr

ested the pet itioner

in connecti on with the Rutherford C ounty offense, but di d not arrest the petit ioner for

drivi ng on a revoked license. Articl es of clot hing worn by t he petiti oner at the t ime he was arrested were als o seized by the au thorities. The trialcourt found that based upon t he ide n tification of the p etitione r’s vehicle, the offi cers had reasonabl e suspicion t o stop the pet itioner . The tri al court further

found that the petit ioner ga v e the o fficers c onse nt to se arch h is vehicle and, as a result, den ied the pe titi o ner ’s moti on to su ppresstheit ems seized from the vehi cle at t hat time. However, the tri al court determined that the officers did not have probable cause to arrest the petit ioner and suppressed the items se ized sub seque nt to his arre st. C. Post-Conv icti on Hearing At the post-convicti on hearing, the petit ioner test ified t hat he was thirty-five (35) years old and had an eleventh grad e educa tion. He stated that he was represented at trial by the public defen der’s office. He claimed that his attorney did not discuss the invest igation of hi s case or anydefensestr ate gie s wi th h im. Although he ac know ledge d that h is attorney discussed the suppressi on hearing with him, he test ified t hat there was no discussion as to why some items of evidence were suppressed and others were not . He stated that, subs equen t to his trialand appeal, hewas involved in a feder al lawsuit against

Detective Luther-5-

and in conne ction with s uch law suit, receive d discove ry materia ls, i n cluding an investi gation report p repared by Dete ctive Luthe r. In the inves tigation rep ort, Detective Luther states that th e officers conducted a second sear ch of the petition er’s vehicle afte r the petition er was a rrested. T he pa ir of wom en’s stocking s were re covered during tha t second search

. Detective Luther als o testified a t the post-conviction hearing. Lu ther admitted conducting a second search of Register’ s vehicl e which produced the pair of women’s stocki ngs. However, Lu ther could not recallwhether the investigative report wa s given to th e Bedfo rd Cou nty District A ttorney’s O ffice. The petiti oner was represented by Forest Du rard of the P ublic D efend er’s Office at trial. At the tim e of the petition er’s trial, D urard had b een in volved in appro ximate ly thirt

y (30) jury trials. Durard test ified t hat he met wit h the peti tioner appro ximate ly nine (9) times in pr eparation for trial. D urard receive d the s tate’s file on the petitioner’s case around the time that t he preliminary hearing was t o take place. Because t he petiti oner agreed to waive his prelimina ry heari ng, the assistant

distri ct attorney agreed to open file discovery

. Durard test ified t hat he investi gated case law and revi ewed the discovery materi als in preparation for the petition er’s suppression hear ing. He was unaware that t he officers conducted a second search of hi s client ’s vehic le untilthe petiti oner’s appealhad concluded. Durard stated tha t he did no t o btain a copy of the in vestiga tive rep ort in preparati on fortrial, and to his knowledge, such report was not in the state’s fi le. He testified that, in his ex perience wit h the Bed ford Cou nty Dis trict Atto rney’s Office, he “had no reason to believe t hat the att orney ge nera l’s of

fice had [

the report].” Assistant

Distri ct Attorney Robert Cri gler test ified at the hearing that he
a ssisted in the petit ioner’s t rial. He was not inti mately inv olved in t he pre-tr ial2 Gary Jo nes, lead couns el for the sta te in this cas e, was d eceas ed at the tim e of the he aring. -6- matters on this case, but revi ewed the state ’s fi le and did not find the investigative report prepare d by Detective L uther. 2 In a w ritten order, t he trialcourt observ ed that al though the i tems sei ze d from the petit ioner’s v ehicle at the time of t he initi al stop were admissible at trial, both defen se co unse l and th e trial c ourt were led to b elieve th at the w ome n’s stockingswere se ized at the time of th e initial stop. The court determined that informati on was w it hheld from the defense regarding the sei zure of these stockings. The t rial c ourt further determ ined that had trial cou nsel been a ware of this second s earch, he wouldhave been successfulin suppressi ng t he stock ings as evidence in the petit ioner’s t rial due t o the court’ s previous ruling thatall items seize d subseque nt to the pe titioner’s arre st were ina dmiss ible. Howeve r, the trial court noted that the stocki ngs were merely a “ minor part of the procee dings,” and the “heart of the state’ s case against t he petiti oner was the eyewitness identification by the vi ctim.” Although the stockings we re corroborative of the victim’s identification, the trial court found that other items of prope rly admissible e vidence also c orroborated th e victim’s testimony. Finding thatthe stocki ngs were not materi al to thestate’s case und er Brady v. Mary land , 373 U.S. 83, 83 S.Ct . 1194 , 1 0 L.Ed.2d 215 (1963) , and its progeny, t he trial court denied pos t-conviction relief in this regard. Fu rthermore, the trial court found that the petiti oner did not receive i neffective a ssistanc e of coun sel with regard to his atto rney’s fa ilure to d iscove r the se cond searc h of the vehicle because t he petiti on er could not demonstrate how he was prejudiced. As a result, the t rial co urt den ied the post-c onvictio n petitio n. From the trial c ourt’s order , the pe titioner b rings th is app eal.3 Und er the 1995 Pos t-Co nvictio n Pro ced ure A ct, the petitio ner h as th e bur den of pro ving h is claims by cl ear and convinci ng evidence. Tenn. Code Ann. § 40-30-210(f). However, since t he present petitio n wa s filed prior t o the effe ctive d ate o f the 1 995 act, th e pet itione r’s cla ims mu st be prov en by a preponderance of the evidence. -7-

POST-CONVICTI ON STANDARD OF REVIE W

In post-conviction pro ceedings, the petitioner bears the burden of proving the allegat ions rais ed in the pet ition by a preponderance of the evidence. 3 Tidw ell v. State , 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101 (Ten n. Crim. App . 1995). Moreover, t he trial court’s findings of fact are conclusive on appeal unless the evidence preponderates against the judgm ent. Tidw ell v. State , 922 S.W.2d at 500; Cam pbell v. State , 904 S.W.2d 594, 595-96 (Tenn . 1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

EXCULPATORY

EVIDENCE

In his fi rst iss ue, the petitioner clai ms that the sta te withheld exculpa tory informati on reg ard ingthesei zure of thewome n’s stock ings duri ng the second search of his vehic le. He argues that t rial counsel would hav e been successful in suppressing t he stockings as evidence at trialhad counsel been aware t hat the officers conducted a second search ofthe vehicle. Beca use the stock ings were admitted as evidence in the pet itioner’s tri al, he contends that he is enti tled to a new tria l. In Brady v. Mary land , 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 1 0 L.Ed.2d 215 (1963), t he Supreme Court held t hat “suppressi on by the prosecu tion o f evidence favorable to an ac cused up on reques t violates due proce ss where the evidence is materi al eithe r to guil t or to puni shment, irr espective of

good fait h or-8-

bad faith of the prosecu tion.” See also Hart man v. State , 896 S.W.2d 94, 101 (Tenn. 1995). In o rder to es ta blish a due proc ess violation unde r Brady , four prerequ isites mu st be m et: 1. The defe ndant mu st have requested the informati on (unless t he evidence is obviously exculpa tory, in whic h cas e the S tate is bound to release the inform ation whethe r requested o r not); 2. The State must have suppressed the i nformation; 3. The information must have been favorable to the accused; and 4. The inform ation m ust ha ve bee n ma terial. State v. Edg in , 902 S.W.2d 387, 389 (Tenn . 199 5). The burden of proving a Brady vio latio n rests with the de fendant, and the violation mus t be proven by a preponderance of the evide nce. Id. ; State v. Spurlock , 874 S.W.2d 602, 610 (Tenn. C rim. App. 199 3). In determining the materiality of undi sclosed information, a review ing court must establi sh whether “i n [the] ab sence [of the inform ation] [the d efenda nt] received a fair trial, unde rstood a s a trial resu lti ng in a verd ict wort hy of confiden ce.” Kyles v. Whitley , 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 49 0 (199 5). In oth er wor ds, evid ence is cons idered mate rial only if there is a reasonable probabilit y that had the evidencebeen disclosedto the defe nse, the results of the proceedi ng would have be en differen t. Kyles v. Whitley , 514 U.S. at 4 33, 115 S. Ct. at 15 65; State v. Edg in , 902 S.W.2d at 390. In its order

denying post-convicti on relief , the trial court foundthat the sta te withhe ld informati on concerning t he sei zure of the stockings, and if such inf ormation had been disclos ed, trial c ouns el wou ld have been succe ssful in suppressing the sto cking s from eviden ce at tria l. However, thetrialcourt found that such i nformation was n ot material . We agree.-9- The victi m testifi ed unequ i vocally at tri al that t he petiti oner was the man who attacked her

on October 8, 1991. Although she wa s unab le to identify the petiti oner from a photo graph ic line-u p, she identifie d the p etitione r prior to trial in
a physical line -up. De tective D ale Ellio tt of the B edford Coun ty She riff’s D epar tme nt testified that t he victi m showed no hesitati on in ident ifyi ng the petiti oner during the ph ysical lin e-up. F urther more , the victim identified a pocket knife found o n the pe ti tione r as resembli ng the one used by her attacker a nd a flannel jack et found in the petition er’s car as one wo rn by the p erpetrato r. Moreover, Shirley

Clanton, t he petiti oner’s nei ghbor, test ified t hat she read
a newspaper arti cle on October 8 which de scribed th e inciden t and the s uspec t,
as well as the suspect’ s clothi ng. She notif ied the aut horiti es when she noticed thatthe petit ioner matched t he descript ion of thesuspect and was wearing si milar clothi ng on October 8. Betty Jonestestified that s he and thepet it ion er l iv ed toget her at t he t ime of the incident, and the petitioner was driving h er vehicle on the day he was stopped by the law enforcement authorit ies. She stated tha t she frequently wo re the type of

stockings f

ound by the off icers i n hercar beca use sh e was p regnan t. She further

testified that s he of ten remove d her sto ckings in her car d ue to swelling in h er legs an d feet. The v ict im’ s i dent if icati on of thepet it ion er a s th e perpet rator of t he c ri me was uncontroverted. Furt hermore, the state presented evi dence which corroborated the vict im’s ident ificat ion test imony. The presence of stockingsin the petitioner’ s vehicle was only sl ight corroborative evidence of the p erpetr ator’s identity. Additionally , when coupled with Betty Jo nes’ explanati on as to the presence of the stockings in t he car, the s ignifi cance of the stockings diminishes. The petiti oner has not demonstr ated a reasonabl e probability that , had the-10-

stockingsbeen suppressed at trial , the result of

the proceedi ng would have been diff erent. As a re sult, we agree with the trial cou rt that the petitio ner has no t carried hi s burden in t his regard. This issu e is withou t merit.

FALSE TE STIMONY

In a related i ssue, the pet itioner argues that

the stateknowingly pr esented the false testimony of Detective Luther

at the sup pression hearing . He ass erts thatDetective Luther’s testimony i mplied th at all of the items were seized fr om the vehicle at the ti me of the ini tial stop. Thus, t he petiti oner clai ms that the state’s failur

e to correct

Detective Luther’s misleading testimonydeprived hi m of a fair trial. “[A]convicti on obtained t hrough the use of fals e evidence, known to be such by representatives of the State”

deprives a def

endan t of due process. Napue v. Illinois , 360 U.S. 264, 269, 79 S.Ct. 1173, 11 77, 3 L.Ed.2d 1217 (195 9);
seealso Giglio v . United States , 4 05 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972 ); State v. Spurlock , 874 S.W.2d 602, 617 (Tenn. Cri m. App. 1993). “The same result obt ains when the S tate, although not solici ting false evidence, allows i t to go uncor rected when it ap pears.” N apue v. Illinois , 360 U.S. at 269, 79 S.Ct. at 1177. Therefore, when a witnes s testi fies fal sely, ei ther
on director cross-e xamina tion, the sta te has an affirmative d uty to correct such false testim ony. State v. Spurlock , 874 S.W.2d at 617. To prevailon a claim that the state know ingly presented false testimony, the a ppellant must show by a prepondera nce of the evi dence “(a) t hat fals e o r perjured testimon y was ad mitted at tria l, (b) that the sta te either k nowin gly used-11-

such testimon y or know ingly allowe d it to go un correcte d, a nd (c) that the testi mony was ma terial and deprived him of a fair trial.” Roger M orris Bell v. State , C.C.A. No. 03C01-9210- CR-00364, 1995 Tenn. Crim. App. LEXIS 221, at *9, Hamilton County (Tenn. Cri m. App. filed March 15, 199 5, at Kno xville), perm. toapp. denied

(Tenn. Au gust 28, 199 5); see also Phillip Shu pe v. State , C.C. A. No. 03C01-9804-CC-00126, 1999 Tenn. Cr im. App. LEXIS 111, at *4, Bradl ey County (T enn. Crim. A pp. filed February 9 , 1999, at Kno xville). It is unclear

whether Detect ive Luthe r delib erately falsi fied his

testimony regarding the se cond searc h or m erely lim ited his answers to the questi ons posed to him. Regardless, it is clear that

Luther’s testi mony ca n argua bly be construed asmislead ing. However, ther e is no indi cation i n the record t hat the Bedford County District Attor ney’ s Of fice knew t hat such test imony was misleading. Indeed, th e petiti oner recognize s in his brief that “[t]he record does not dis close wheth er any prose cuting attorne y was a ware o f Dete ctive Lu ther’s duplicity.” Assistant

Distri ct Attorney Crigler testified at thepost-convi ction hearing that the sta te’s fi le did not contain t he investi gative r eport prepar

ed by Lutherwhich revealed t he second search. Withou t any evidence to the contrary,
we are relucta nt t o hold th at the state knowingl y presented false or misl eading testimony. In any event, the petit ion e r has not demonstr ated that t he evidence was mate rial and depriv ed him of a fair tria l. As we previo usly stated, t he stockings constit uted very little of t he state’s proof of the petitioner’s id entity. If the state had corrected Detective Lut her’s testimony and the stockingswere ruled inadm issible, we are not co nvince d that a reaso nable probab ility exists that the result of the p rocee dings would have been differen t. Thu s, the p etitione r’s claim in this re gard m ust fail.-12- This issu e has n o merit.

INEFFECTIV E ASSISTA NCE OF COUNSEL

In his fi nal issue, the petit ioner cla ims thattrialcounsel was ineffective f or faili ng to discover the secon d ill egal search at the time of

the suppressi on hearing. Essential ly, he ar gue s that tri al counsel did not effectively crossexamine Detective Luther a t the supp ression h earing. He contends that had trial counsel asked the proper questions during the suppression heari ng, the trial court would have suppress ed t he stockings as evidence. Therefore, he maintainsthat trial c ouns el’s performance was def icient , and he was prejudiced
as a resu lt. Th e United S tates Su preme Court ar ticulated a two-pron g test for co urts to emp loy in evalua ting cla ims o f ineffec tive ass istanc e of co unse l in Strickl and
v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The Co urt bega n its ana lysis by noting th at “[t]he benchmark for judging any claim of ineffecti veness must be whether cou ns el’s conduct so undermined the pr oper functioni ng of the adver sarial process that

the tri al cannotbe relied on as having produced a just result.” Strickl and , 46 6 U.S. at 686, 104 S.Ct. at 2064. When challengi ng the effec

tive assi stance of counselin a post-convi ction proceeding, the pe titioner b ears th e burd en of e stablis hing (1 ) the atto rney’s representat ion
was deficient; and (2) the defici ent performance resulted in prej udice so as to deprive the defen dant of a fa ir trial. Strickl and , 466 U.S. at 687, 104 S.Ct. at 2064; Powe rs v. State , 942 S. W.2d 551, 5 58 (T enn. C rim. A pp. 19 96). T his C ourt is no t requir

ed to consider

the two prongs of Stri ckland in any particul ar o rder. Harris v. S tate , 947 S. W.2d 156, 1 63 (Tenn. Crim. Ap p. 1996)

.-13-

“Moreover, if the Appe llant fails to esta blis h one prong, a reviewing court need not consider the other.” Id. The test i n Tennessee in deter mining whethercounsel provid ed effective assistance at tri al is whether counsel’s per formance was “wit hin the range of competence deman ded of attorneys in criminal cases .” Baxter v . Rose , 523 S.W.2d 930, 93 6 (Ten n. 1975 ); see also Harris v. S tate , 947 S.W .2d at 163 . In orderto demonstrate that counselwas defici ent, the pet itioner must show that
coun sel’s represen tati on fellbelow a n obje ctive standard of r easonableness underprevailing p rofession al norm s. Strickl and , 466 U.S . at 688, 10 4 S.Ct. a t 2064; Harris v. S tate , 947 S.W.2d at 163. Under the prejudice prong o f Strickl and , the petitioner must establi sh that “there is a reasonable prob abilit y that, but for coun sel's unpr ofessionalerrors, the result of the proceeding would have been different. A reasonable probability is a probab ilitysufficient to underm ine confidence in the outcom e.” Str ickland , 466 U.S. at 694, 104 S.Ct. at 2068. In reviewi ng coun sel’s co nduc t, a “fair assessm ent . . . requires that every effort be made to eliminate the distorting ef fects of hindsight , to reconstruct t he circumstancesof c ouns el’s cha llenged conduct , and to eval uate the conduct from
coun sel’s perspe ctive at the tim e.” Strickl and , 466 U.S. at 689, 104 S.Ct. at 2065. The mere failur e of a parti cular tac

tic or strategy

does n ot per

seestablish
unrea sona ble represe ntation. Goad v. State , 938 S.W.2d 363, 369 (Ten n. 1996). Howeve r, this Court

will defer to couns el’s tacticaland strat eg ic choic es on ly where those choice s are informed ones predicated upon adequate preparat ion. Id. ; Hellard v. S tate , 629 S.W .2d 4, 9 (Ten n. 1982). The trialcourt found that trial counsel ’s performanc e was n ot defic ient in this case. Furthe rmore, the t rial cour t foun d that the p etiti oner had not-14-

d emonstrated how he was pre judiced b y his attorne y’s alleged deficienc y. W e agree. Tr ial counsel testif ied that he received open fi le discovery f rom the st at e but did not receive D etective Luther’s inves tigative report whi ch revealed t he second search of t he petiti oner’s vehi cle. He was unaware ofthe second search until after the petit ioner’s a ppeal had concluded. Durard test ified t hat he thorou ghly invest i gated case law an d revie wed h is disco very m aterials in preparati on for the suppres sion hearing. T rial counsel had no reason to believe thata second search of the vehicle was conducted; t herefore, he had no reason to question Detect ive Luther concerning t he second search of the vehicle. As a result, the petiti oner has not prov en thattrial counsel’s perform ance in this rega rd was de ficient. Furthermore, the petit ioner has not demonstrate d how he was prejudi ced by this alleged d eficiency. W e have previ ously concl uded that the admission of the stockings as

evidence di d not material ly affect the state’s case agai ns t the petitioner. As such, the pet itioner has not sho wn “a reason able pro bability that, but for counsel’s un professional erro rs, the result of the proce eding wou ld have been different.” Strickl and v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068. This issu e has n o merit.

CONCLUSI ON

After a tho rough re view of the record b efore this C ourt, we conclude that the petition er has not pro ven his allegations by a preponderance of the evidence. According ly, the judgment of the tri al court de ny ing pos t-conv iction re lief is affirmed.-15- Howeve r, upon our revi ew of the recor d, we observe t hat the ju dgments of convicti on indicate that the p e titio ner was se ntenced as a Mitigated Offen der. Howeve r, a reading of the transc ript

reveals t hat the petitioner was sentenced as
a Range II, Mu ltiple Offender. Wh en the re is a c onflict b etwee n the c ourt m inutes
or judgment and the t ranscript , the tr anscript c ontrols. State v. Moore , 814 S.W.2d 381, 38 3 (Ten n. Crim. A pp. 199 1). As a re sult, th is case must be remanded to the trial court for entry of proper judgments.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOHN H. PEAY, JUDGE